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June 7, 2006

Encouraging a critical race examination of post-Booker developments

During the Miami FSG conference, one troubling idea kept coming to mind: white defendants seem to be doing better than minority defendants in the post-Booker world.

Notably, the Sentencing Commission's March Booker report asserts that, after Booker, "black offenders are associated with sentences that are 4.9% higher than white offenders." And here are other notable data from post-Booker statistics:

According to Table 25 in the USSC Booker report, roughly 1 in 5 first offenders who are white are getting a below-guideline sentence after Booker. For black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.

The theft/fraud category of crimes — crimes which have a statistically higher percentage of have white defendants — have the highest rate of Booker variances according to the most recent post-Booker data.

In addition to these data points from the post-Booker world, consider also these qualitative realities:

Though the crack-cocaine debate has an obvious racial dimension, circuit rulings rejecting efforts to impose lower crack sentences have not fully grappled with the racial impact of the 100-1 crack/powder ratio.

With these comments, I do not mean to make a blanket assertion that racial bias infects the post-Booker world. But I do hope to encourage everyone to examine closely post-Booker developments through the lens of race and to explore critically whether there may be skews in how increased discretion is being applied in the federal sentencing system after Booker.

Comments

Professor Berman,

Thanks for raising this issue. In today's cultural and political climate, mere mention of a 'race' variable takes some courage, as it stigmatizes the speaker as endeavoring to be 'politically correct,' be it with regard to criminal justice issues, affirmative action policies, or (de facto) segregated neighborhoods and public schooling. All of this is long overdue for a sophisticated neo-Freudian analysis of disavowal and the psychology of denial....

Posted by: Patrick S. O'Donnell | Jun 7, 2006 8:21:12 AM

Question: I can't tell from the post, but do the stats show that the disparate treatment of white versus black offenders has INCREASED since Booker? Surely a disparity existed under the mandatory Guidelines regime as well. Has the gap widened after Booker?

Posted by: ycl | Jun 7, 2006 9:33:37 AM

ycl is looking for the right data.

We don't live in a post-racial society; never have.

Prof B., you wanted to disclaim the "blanket assertion that racial bias infects the post-Booker world" - but how on earth are we to interpret the pervasive, if not always consciously and intentionally expressed, racism exemplified by disparate policing, disparate investigating, disparate charging, and disparate verdict and sentencing outcomes?

There's a little more discretion in the system than there was before. But the problems start well before the case gets to the sentencing phase, and they don't magically vanish just because the individual judge is free of intentional racism. Someone had to put on the case, assemble the evidence, and craft the statutory punishment. There's disparate impact a-plenty in there, not to mention the egregious disparate treatment of crack-vs-powder users.

Great inquiry. I'm curious why Hispanics receive significantly fewer below-Guidelines sentences by such a wide margin over whites and African-Americans, where the margin is much lower (only a 3.3% difference between whites and African-Americans, as opposed to a 5.5% difference between Hispanics and African-Americans?). Any thoughts? Is the system more racist toward Hispanics than African-Americans?

Mark

Posted by: Mark | Jun 7, 2006 11:34:37 AM

In a capitalistic society, the measure of success is money and the harm caused is likewise measured in dollars and cents. The predominate color, for justifying punishment, is green. To make the system color-blind; a proportional value determination should guide punishment. If the harm to society is $100, then the punishment would be the same, whether it was theft, fraud or drugs. Remove the racial proclivity to punish more severely the lower class who has dealt in small amounts of drugs. In a civil context, legislators, judges and juries are often asked to place a dollar value on harm done to individuals or society and even place a dollar value on the loss of a limb or life, no matter how the injury occurred. If a defendant causes $100 in damage, no matter how the act was done, the retribution is $100. Turn the lights out in the courtroom where the color of the defendant is unknown; use the same guideline, like U.S.S.G. §2B1.1 is used for a wide variety of crimes, and begin the sentence calculations from the standard for everyone. If the crime is commodity driven, then utilize the commodity standard of trade as the standard for sentencing. And if the civil preponderance of the evidence standard satisfies due process at sentencing, see Grier, then the courts “award of punishment” for damages will easily incorporate civil rules into sentencing criminals of all color and justifying uncharged or even acquitted conduct would be more palatable if proportionate and even-handed.